DIVANE v. 5 STAR CONSTRUCTION

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs William T. Divane, Jr., Michael J. Caddigan, I.
Steven Diamond, Samuel Evans, Michael Fitzgerald, Thomas C.
Halperin, David A. Hardt, Daniel Meyer, Richard Sipple and
Michael R. Walsdorf, as the Electrical Insurance Trustees
(hereinafter, "Plaintiffs"), filed a Motion for Rule to Show
Cause seeking to hold Yuri Starodubsky (hereinafter,
"Starodubksy") in contempt of the Court's November 8, 2001
Injunction Order (the "Injunction"). Before the Court is
Starodubsky's FED. R. CIV. P. 12(c) Motion for Judgment on the
Pleadings, in which he requests that the Court deny the Rule to
Show Cause and hold the Injunction invalid pursuant to FED. R.
CIV. P. 65(d).

I. DISCUSSION

A motion for judgment on the pleadings only should be granted
when it appears that the plaintiff will be unable to prove any
facts to support the claim for relief. See Forseth v. Village
of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). Rule 12(c) is not
the proper avenue to seek a declaration that an injunction is
invalid. Further, in response to the Rule 12(c) Motion,
Plaintiffs have presented material outside the scope of the
pleadings, such as citations to the November 2001 trial before
this Court. Starodubksy argues that this is improper under Rule
12(c). The Rule provides, however, that when "matters outside the
pleading are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment." The Court
therefore converts this motion to summary judgment motion.

Summary judgment is only appropriate if there is no genuine
issue of any material fact. Here, the crux of Starodubsky's
argument is that the Injunction is unenforceable because it does
not strictly comply with the requirements of Rule 65(d).
Specifically, the Injunction prohibits work within the scope of
the Principal Agreement (a separate document) rather than
spelling out the conduct prohibited within its text.

Plaintiffs respond that the Injunction is enforceable even
without strict compliance with Rule 65(d) because the claimed
violation was technical, not substantial, and Starodubsky had
actual knowledge of and understood the conduct being prohibited
by the Injunction. Plaintiffs suggest that Starodubsky's
knowledge is clear from his presence, testimony, and
representation by counsel at the trial, which formed the basis
for the Injunction. Starodubsky constructively disputes that he had knowledge of
what actually was prohibited by the Injunction. For example,
Starodubsky argues, "Can work be subcontracted? Can work be
performed on certain structures such as a residence . . . Is the
injunction limited in terms of location . . .? Can light fixtures
. . . The questions raised by the lack of specificity of the
November 8th Order are nearly endless." (Reply Br. at 13).

Here, the Court issued the Injunction after several status
hearings and a trial on the merits. The text of the Injunction
explains that it was issued because 5 Star failed to furnish a
fringe-benefit bond in connection with the Principal Agreement
between it, the Electric Contractors' Association of Chicago, and
the Local Union No. 143. The Injunction prohibits "5 STAR
CONSTRUCTION INC. . . . from engaging in work within the scope of
work clause of the Principal Agreement. . . ."

The Seventh Circuit suggests that an injunction can be
enforceable if the enjoined party understood exactly what conduct
was being prohibited at the time it was issued. See, e.g.,
Chathas v. Local 134 Intl. Brotherhood of Electric Workers,
233 F.3d 508, 513 (7th Cir. 2000) ("When the terms of an injunction,
although not set forth in a separate document as the rule
requires, can be inferred from the documentary record with
sufficient clarity to enable a violation of those terms to be
punished as a contempt, the injunction is enforceable."); Advent
Electronics Inc. v. Buckman, 112 F.3d 267, 273 (7th Cir. 1997) (upholding
injunction where parties were "obviously aware of the terms of
the injunction and to find that there was no injunction would
exact form over substance"). There is a disputed material fact as
to Starodubsky's knowledge and awareness of the conduct
prohibited by the Injunction. Accordingly, summary judgment is
inappropriate.

II. CONCLUSION

For the reasons stated herein, Defendant Yuri Starodubsky's
Motion for Judgment on the Pleadings under FED. R. CIV. P. 12(c)
is denied.

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.